Hall v. Commissioner of Social Security

Filing 28

OPINION AND ORDER. The decision of the Commissioner is AFFIRMED. Judgment will issue accordingly. Signed by Magistrate Judge Charles B Goodwin on 9/22/16. (lb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JANA DENISE HALL,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Case No. CIV-15-105-CG

OPINION AND ORDER
Plaintiff Jana Denise Hall brings this action pursuant to 42 U.S.C. § 405(g) for
judicial review of the final decision of the Commissioner of the Social Security
Administration (“SSA”) denying her applications for disability insurance benefits
(“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. The parties
have consented to the jurisdiction of a United States Magistrate Judge. Upon review of
the administrative record (Doc. No. 13, hereinafter “R. __”), and the arguments and
authorities submitted by the parties, the Court affirms the Commissioner’s decision.
PROCEDURAL HISTORY
Plaintiff protectively filed her application for DIB on October 5, 2011, alleging a
disability onset date of July 30, 2006. R. 124-29, 155-57, 158-66. Following denial of
the application initially and on reconsideration, a hearing was conducted before an
Administrative Law Judge (“ALJ”). R. 45-71, 74-78. The ALJ issued an unfavorable
decision on July 30, 2013. R. 18-39. The SSA Appeals Council denied Plaintiff’s

request for review, making the ALJ’s unfavorable decision the final decision of the
Commissioner. R. 1-6; see also 20 C.F.R. § 404.981. This action for judicial review
followed.
ADMINISTRATIVE DECISION
The Commissioner uses a five-step sequential evaluation process to determine
eligibility for disability benefits. Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009);
20 C.F.R. § 404.1520(a)(4). At step one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since July 30, 2006, the alleged onset date, through December
31, 2011, her date last insured. R. 20; see 20 C.F.R. § 404.1571. At step two, the ALJ
determined that Plaintiff had the severe impairments of “degenerative disc disease; major
depressive disorder versus bipolar disorder; attention deficit hyperactivity disorder; and
rule out personality disorder.” R. 20-31; see 20 C.F.R. § 404.1520(c). At step three, the
ALJ determined that Plaintiff’s impairments did not meet or equal any of the
presumptively disabling impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
R. 31-32; see 20 C.F.R. § 404.1520(d).
The ALJ next assessed Plaintiff’s residual functional capacity (“RFC”) based on
all of her impairments. R. 32-37; see 20 C.F.R. § 404.1520(a)(4)(iv). The ALJ found
that Plaintiff had the RFC to perform light work, subject to specific limitations and
restrictions:
the claimant is able to only occasionally push/pull, including operation of
hand/foot controls, as well as occasionally stoop and climb ramps and
stairs, and frequently kneel, crouch, crawl, and . . . balance but never climb
ladders, ropes or scaffolds. Additionally, the claimant is able to
understand, remember, comprehend and carry out simple and some more
2

complex instructions and tasks, in addition to being able to work [with]
supervisors and coworkers on a superficial work basis and adapt to routine
changes in the work environment, but the claimant is unable to work with
the general public.
R. 32-37; see 20 C.F.R. § 404.1567(b) (defining “light work”). At step four, the ALJ
found that Plaintiff was unable to perform any past relevant work and that transferability
of job skills was not material to the determination of disability. R. 37, 38; see 20 C.F.R.
§§ 404.1565, .1568.
At step five, the ALJ considered whether there are jobs existing in significant
numbers in the national economy that Plaintiff—in view of her age, education, work
experience, and RFC—could perform. Taking into consideration the testimony of a
vocational expert (“VE”) regarding the degree of erosion to the unskilled light
occupational base caused by Plaintiff’s additional limitations, the ALJ concluded that
Plaintiff could perform light, semiskilled occupations such as merchandise marker, label
coder, and routing clerk; as well as sedentary, unskilled occupations such as addresser,
tube operator, and document processor, all of which offer jobs that exist in significant
numbers in the national economy. R. 38-39; see 20 C.F.R. § 404.1545(a)(5)(ii). On that
basis, the ALJ determined that Plaintiff had not been under a disability, as defined in the
Social Security Act, from July 30, 2006, through December 31, 2011. R. 39; see 20
C.F.R. § 404.1520(g).
STANDARD OF REVIEW
Judicial review of the Commissioner’s final decision is limited to determining
whether factual findings are supported by substantial evidence in the record as a whole

3

and whether correct legal standards were applied. Poppa v. Astrue, 569 F.3d 1167, 1169
(10th Cir. 2009). “Substantial evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Doyal v. Barnhart, 331 F.3d 758, 760
(10th Cir. 2003) (internal quotation marks omitted).

“A decision is not based on

substantial evidence if it is overwhelmed by other evidence in the record or if there is a
mere scintilla of evidence supporting it.” Branum v. Barnhart, 385 F.3d 1268, 1270
(10th Cir. 2004) (internal quotation marks omitted). The court “meticulously examine[s]
the record as a whole,” including any evidence “that may undercut or detract from the
ALJ’s findings,” “to determine if the substantiality test has been met.” Wall, 561 F.3d at
1052 (internal quotation marks omitted). While a reviewing court considers whether the
Commissioner followed applicable rules of law in weighing particular types of evidence
in disability cases, the court does not reweigh the evidence or substitute its own judgment
for that of the Commissioner. Bowman v. Astrue, 511 F.3d 1270, 1272 (10th Cir. 2008).
ANALYSIS
Plaintiff alleges the following claims of error: (1) the RFC is not supported by
substantial evidence because (a) ALJ did not properly evaluate the opinion of treating
psychologist Michael Brand, PhD, (b) the ALJ did not properly develop the record, and
(c) the ALJ did not properly evaluate Plaintiff’s credibility; and (2) the ALJ’s step-five
determination is not supported by substantial evidence. Pl.’s Br. (Doc. No. 21) at 5, 151

32.
1

With the exception of the administrative record, references to the parties’ filings use the
page numbers assigned by the Court’s electronic filing system.
4

A. The RFC Determination
1. Mental Limitations Found by Dr. Brand
After an initial psychiatric evaluation on November 11, 2010, Elizabeth Foote,
MD, referred Plaintiff for individual psychotherapy to Michael Brand, PhD, who was Dr.
Foote’s colleague in the Department of Psychiatry and Behavioral Sciences at the
University of Oklahoma Health Sciences Center. R. 353, 356. The medical record
indicates that Dr. Foote continued to see Plaintiff for medication management through
January 3, 2013. See R. 353-418, 463-98 (Exs. 7F, 15F). Though there are some gaps,
the medical record indicates that Plaintiff saw Dr. Brand for psychotherapy from
November 30, 2010, through the end of 2011. See R. 353-418. There are no treatment
records for Dr. Brand during 2012, though Dr. Brand completed two Mental Capacity
Assessment forms that year. See R. 419-22, 499-502 (Exs. 8F, 16F). There is also one
treatment record for Dr. Brand from 2013. R. 464-65.
On January 12, 2012, Dr. Brand completed a Mental Capacity Assessment form
(“MCA 1”), in which he checked boxes opining that Plaintiff had marked limitations in
six functional areas. R. 420-22. On December 18, 2012, Dr. Brand completed a second
Mental Capacity Assessment form (“MCA 2”), in which he checked boxes opining that
Plaintiff had marked limitations in nine functional areas. R. 499-501.2 Plaintiff alleges

2

Out of the 23 questions on each MCA, nine of Dr. Brand’s answers were identical. Of
those nine, three noted marked limitations in certain of Plaintiff’s abilities (ability to
complete a normal workday without interruptions from psychologically based symptoms,
ability to respond appropriately to changes in the work setting, and ability to travel in
unfamiliar places or use public transportation); four indicated moderate limitations in
certain abilities; and two indicated slight limitations in certain abilities. On the 14
5

that the ALJ failed to properly analyze and weigh these opinions by Dr. Brand, arguing
that “[t]he ALJ erred when he failed to give controlling or even great weight to the
opinion of treating psychologist Dr. Brand.” Pl.’s Br. at 16; see also id. at 16-21.
a. Treating physician opinions
By regulation, a treating physician’s (or treating psychologist’s) medical opinion
generally is given “more weight” than that of a nontreating source.

20 C.F.R. §

404.1527(a)(2), c)(2); Langley v. Barnhart, 373 F.3d 1116, 1119 (10th Cir. 2004). Under
Tenth Circuit authority, the evaluation of a treating physician’s opinion follows a twostep procedure. Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). First, the
ALJ must determine whether the treating physician’s opinion should be given
“controlling weight” on the matter to which it relates.

See id.; 20 C.F.R. §

404.1527(a)(2), (c)(2). The opinion of a treating physician must be given controlling
weight if it is both well supported by medically acceptable clinical or laboratory
diagnostic techniques and not inconsistent with other substantial evidence in the record.
Watkins, 350 F.3d at 1300 (applying SSR 96-2p, 1996 WL 374188, at *2 (July 2, 1996));
20 C.F.R. § 404.1527(c)(2). Second, if the ALJ has determined that the medical opinion
of a treating physician is not entitled to controlling weight, the ALJ must determine what
lesser weight should be afforded the opinion. See Watkins, 350 F.3d at 1300-01; Langley,
373 F.3d at 1119. A treating physician opinion not afforded controlling weight is still
questions that received different answers between the MCAs, Dr. Brand indicated a
decrease in Plaintiff’s limitations between the earlier and later assessments on five
answers, and he indicated an increase in limitations during that eleven-month period on
nine answers. A table showing all the assessed limitations and Dr. Brand’s responses to
each MCA is appended to the end of this order.
6

entitled to deference. See Watkins, 350 F.3d at 1300. The determination of how much
deference to afford a treating physician opinion should be made in view of a prescribed
set of regulatory factors. Watkins, 350 F.3d at 1301; 20 C.F.R. § 404.1527(c)(2)-(6). But
“[t]he ALJ is not required to mechanically apply all of these factors in a given case.”
Ringgold v. Colvin, 644 F. App’x 841, 843 (10th Cir. 2016) (citing Oldham v. Astrue, 509
F.3d 1254, 1258 (10th Cir. 2007)). “It is sufficient if he ‘provides good reasons in his
decision for the weight he gave to the physician’s opinions.’” Id. (alterations omitted)
(quoting Oldham, 509 F.3d at 1258).
b. The ALJ’s findings
The ALJ gave “no significant weight” to the opinions Dr. Brand expressed in the
MCAs, determining that they were “not ‘well supported’” and that they were
“inconsistent with other substantial evidence of record.” R. 30 (quoting SSR 96-2p, 1996
WL 374188 (July 2, 1996)), 37. Specifically, the ALJ stated:
Clearly, it appears that Dr. Brand is a treating physician and that he is an
acceptable medical source. However, it appears that the opinions regarding
the claimant’s mental [RFC], as expressed in the [MCAs] described above,
are not “well supported.” Furthermore, his opinions regarding the
claimant’s mental [RFC] are inconsistent with other substantial evidence of
record. [First], the undersigned notes that Dr. Brand’s opinions regarding
the claimant’s mental [RFC] are not well supported by the mental status
examination findings reported by Dr. Brand in the progress notes
maintained in the regular course of treating the claimant, as described
above. Moreover, as reflected above, such opinions certainly are
inconsistent with the mental status findings reported by Dr. Foote, who
apparently is a colleague of Dr. Brand in the treatment of the claimant at
OU Physicians Psychiatry and Behavioral Sciences. Notably, it generally
appears that the mental status examination findings reported by Dr. Foote
often are significantly inconsistent with those reported by Dr. Brand during
contiguous time periods. In the latter respect, the undersigned is generally
disposed to assign great[er] weight to the opinions of Dr. Foote, who is a
7

psychiatrist, than to those of Dr. Brand, who is simply a
psychologist/counselor. In any event, the undersigned again notes that even
the mental status examination findings reported by Dr. Brand do not reflect
. . . the severity suggested by Dr. Brand in his medical source statements,
particularly with respect to a continuous of not less than 12 consecutive
months, as required by the Social Security Act. Additionally, the opinions
of Dr. Brand regarding the claimant’s mental [RFC] not only are
inconsistent with the opinions of the medical consultants for the state
agency, but also are inconsistent with the opinions and mental status
findings reported by Dr. Waller, as described above. For all of the
foregoing reasons, the undersigned is disposed to assign no significant
weight to the opinions of Dr. Brand regarding the claimant’s mental [RFC].
Nevertheless, the undersigned does assign full weight to any and all mental
status findings reported by Dr. Brand in the regular course of his treatment
of the claimant, albeit such findings are interpreted in their [context] with
the mental status findings reported by Dr. Foote, as well as the mental
status findings reported by other mental health specialists, as well as
objective observations by other acceptable treating and/or examining
medical sources appearing of record.
R. 30.
c. Discussion
Plaintiff argues that the ALJ “did not properly analyze the relevant factors” in his
consideration of Dr. Brand’s MCAs.

Plaintiff specifically challenges the ALJ’s

determination that Dr. Brand’s opinions were not well supported and were inconsistent
with other substantial evidence of record. Pl.’s Br. at 16-21. In considering Plaintiff’s
arguments, the Court first considers whether the ALJ properly determined that Dr.
Brand’s MCAs were not entitled to controlling weight—i.e., was there substantial
evidence to support the ALJ’s findings that Dr. Brand’s MCAs were “not ‘well
supported’” and that they were “inconsistent with other substantial evidence of record.”
See R. 30; Watkins, 350 F.3d at 1300. If the ALJ properly determined that Dr. Brand’s
MCAs were not entitled to controlling weight, then the Court next considers whether the
8

ALJ properly determined that Dr. Brand’s MCAs were entitled to “no significant
weight”—i.e., did the ALJ consider the proper regulatory factors and was his analysis of
those factors supported by substantial evidence.
i. The ALJ properly determined that Dr. Brand’s MCAs were not entitled
to controlling weight
a) Dr. Brand’s MCAs were not well supported
The MCA form instructs the assessor to “[d]escribe the medical/clinical findings
that support this assessment.” See R. 420-22, 499-501. For his MCA 1 assessments, Dr.
Brand provided explanations for most of his answers, but these explanations do not
3

clearly correspond with the “marked” limitations he noted. See R. 420-22.

For his

MCA 2 assessments, however, Dr. Brand provided no explanations at all. See R. 499501. Thus, insofar as what is provided in the MCAs themselves, the ALJ reasonably
concluded that the limitations assessed by Dr. Brand are not well supported.
With respect to Dr. Brand’s other records, the ALJ discussed Dr. Brand’s
treatment notes in detail and specifically found them to be “inconsistent” with the
limitations assessed in the MCAs. See R. 30 (“Dr. Brand’s opinions regarding the
claimant’s mental [RFC] are not well supported by the mental status examination
3

Regarding limitations related to Understanding & Memory, Dr. Brand did not provide
explanations for his assessment of Plaintiff’s limitations. See R. 420. Regarding
limitations related to Sustained Concentration & Persistence, Dr. Brand stated “Patient
has problems w/ scheduling, time[] management, and memory. Frequently late to
appointments, cancel[]s, and no shows.” R. 421. Regarding limitations related to Social
Interaction, Dr. Brand stated “Has modest difficulty in these areas currently in non work
environment. Becomes very anxious, blocking judgement and ability to respond.” Id.
(emphasis added). And regarding limitations related to Adaptation, Dr. Brand stated
“Currently moderate functioning in these areas, some trouble coping with change.” R.
422 (emphasis added).
9

findings reported by Dr. Brand in the progress notes maintained in the regular course of
treating the claimant”). Plaintiff argues that, to the contrary, Dr. Brand’s MCA opinions
were “well supported by his treatment notes,” Pl.’s Br. at 18, relying specifically on
statements from five treatment notes: those of July 5, 2011 (R. 396), July 14, 2011 (R.
397), September 6, 2011 (R. 405), September 29, 2011 (R. 406), and October 11, 2011
(R. 407). See Pl.’s Br. at 18.
The ALJ noted the statements Plaintiff emphasizes and also discussed other
findings by Dr. Brand that do not reflect severe functional limitations:
[M]ental status examination apparently reported by Dr. Brand on July 5,
2011, reflected the following findings: “dysthymic; tearful at times, affect
over modulated/mood incongruence, sleep initial disturbance, appetite
diminished, lost 15-20 pounds in past year, obsessive thinking, denies si/hi
[i.e., suicidal ideation/homicidal ideation], some thought of substance use,
smoking off and on, insight poor, judgment fair, impulse [fair], risk low.”
However, mental status examination reported by Dr. Brand on July 14,
2011, reportedly reflected the following findings: “mood normal but
anxious - marriage, affect congruent difficulty with modulation - anxiety
and marriage; sleep wnl [i.e., within normal limits], appetite down; weight
loss 106/5’5” few thoughts of use, denies si/none noted.” Subsequently,
mental status examination reported by Dr. Brand on September 6, 2011,
reportedly reflected the following findings: “verbal and engaged; no acute
distress; no si/hi n/v; ADL [i.e., activities of daily living] wnl; mood
euthymic stable; affect incongruent, over modulated, anxious, sad, guilty;
thinking logical [goal-directed] with some tangential and circumstantial
thinking, rpt confusion, blocking, worry, obsessive, racing, distracted
thinking most of time; guilt and self-reproach; risk low.” Mental status
examination reported by Dr. Brand on September 29, 2011, reportedly
reflected the following findings: “mood anxious worried; affect over
modulated; thoughts clouded, confused, denies si/hi none n/v; ADL wnl;
risk low.” Mental status examination reported by Dr. Brand on October 11
2011, reportedly reflected the following findings: “Rpt more depressed last
week or so; mood depressed, flux some pleasant moods; affect tearful
today, rpt some problems with modulation- emotional; thinking rambles,
tangential, circumstantial, decreased attention and concentration requires
redirecting, denies si/hi none n/v; sleep disturbed did not sleep last night;
10

ADL wnl with effort; denies thoughts to use alcohol or drugs; risk low children.”
R. 24-25 (emphasis added).
The ALJ also discussed additional findings by Dr. Brand that likewise reflect that
Plaintiff was experiencing mental health issues but nonetheless was functioning within
normal limits and improving:
[M]ental status examination reported by Dr. Brand on October 24, 2011,
reportedly reflected the following findings: “Mood, ‘ok, normal’ affect over
modulated with considerable effort; thinking unclear, scatter, blocking, “not
clicking” denies si/hi n/v; sleep disturbed by baby, appetite flux; ADL wnl;
risk low.” Mental status examination reported by Dr. Brand on November
14, 2011, reportedly reflected the following findings: “Rpt feeling better
Behavioral - [normal] Mood - better, periods of dysthymia and irritability
several days Affect -flux during these periods Thinking – logical [goaldirected], SI/HI-denies n/v ADL- [normal], sleep, decreased, little exercise
Risk - low - moderate.”
....
[M]ental status examination reported by Dr. Brand on December 15, 2011,
reportedly reflected the following findings: “Modest improvement
Behavioral – [normal] Mood - flux with pain, depression some anxiety
Affect - less nervous, better modulation Thinking – logical[goal-directed],
all-nothing SI/denies n/v ADL- [normal] Risk-low - moderate.”
4

R. 25 (emphasis added); see also R. 410, 411, 414.

As reflected in the ALJ’s detailed summaries, the statements from Dr. Brand that
Plaintiff relies on appear in the context of that physician’s numerous statements reflecting
a more positive view of Plaintiff’s functioning. Plaintiff has not shown that the ALJ
improperly ignored negative findings in favor of positive ones or otherwise failed to
4

There are no treatment notes from Dr. Brand from 2012. The medical record contains
one other treatment note from Dr. Brand, dated January 3, 2013, which states, “Thinkinglogical and goal directed[;] SI/HI-none n/v[;] ADL-[normal] [;] Risk-low.” R. 465.
11

grapple with significant opinions of Dr. Brand.

And, upon review of Dr. Brand’s

treatment notes, the Court concludes that the ALJ’s determination that Dr. Brand’s MCA
assessments “are not well supported by the mental status examination findings reported
by Dr. Brand in the [treatment] notes” is reasonable and supported by substantial
evidence. See R. 30, 356-418, 464-65. To find otherwise would require the Court to
reweigh the evidence and substitute its judgment for that of the ALJ, which it may not do.
See Bowman, 511 F.3d at 1272; accord Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th
Cir. 2005).
b) Dr. Brand’s MCAs were inconsistent with other substantial
evidence of record
(1) Consistency with Dr. Foote’s Findings and Opinions
In declining to give significant weight to the opinions in Dr. Brand’s MCAs, the
ALJ also determined that “such opinions certainly are inconsistent with the metal status
findings reported by Dr. Foote, who apparently is a colleague of Dr. Brand in the
treatment of the claimant.” R. 30. Plaintiff challenges this determination, emphasizing
certain statements from Dr. Foote’s notes from Plaintiff’s initial psychiatric review and
another six sessions. Pl.’s Br. at 18-19 (citing R. 353-54 (initial psychiatric evaluation
dated Nov. 11, 2010), 367 (progress note dated Feb. 21, 2011), 369 (progress note dated
Mar. 14, 2011), 375 (progress note dated Mar. 31, 2011), 377 (progress note dated Apr.
21, 2011), 382 (progress note dated May 17, 2011), 392 (progress note dated June 27,
2011)).

12

As to the initial psychiatric evaluation, it is correct that Dr. Foote noted Plaintiff’s
statements that she suffered “chronically decreased appetite, decreased concentration,
guilt, spontaneous tearfulness, and ‘the ability to feel presences’ and ‘see shadows of
dead people,’” and her childhood sexual abuse. R. 353-54. Those notes are not the
psychiatrist’s own findings, however, but a record of Plaintiff’s self-reporting of her
history. As such, they are of limited value in evaluating the consistency of Dr. Foote’s
mental status findings with Dr. Brand’s MCA opinions.
As to the subsequent session notes, Plaintiff points to Dr. Foote’s observation that
“Plaintiff was anxious and depressed with poor insight and judgment.” Pl.’s Br. at 19
(citing R. 367 (Feb. 21, 2011), 369 (Mar. 14, 2011), 375 (Mar. 31, 2011), 377 (Apr. 21,
2011), 382 (May 17, 2011), 392 (June 27, 2011)). Plaintiff also points to Dr. Foote’s
5

assessments of GAF scores of 40 and 45.

Pl.’s Br. at 19; R. 367, 369, 375, 377, 382,

392.
Again, the ALJ considered each of the treatment notes cited by Plaintiff, correctly
recounting that each reflected the following mental examination findings:
“Alert & Oriented x4. Moderately groomed. Pleasant and cooperative with
interview. Psychomotor agitation noted. Voice appropriate volume.
Speech regular rate, mildly labile prosody. Mood anxious, depressed.
Affect mildly labile, congruent. No SI, no HI. Thought process logical &
coherent to directed questioning. Thought content without delusions. No
5

A GAF score is a clinician’s determination on a scale of 1 to 100 of an individual’s
overall level of functioning. See Langley, 373 F.3d at 1122 n.3 (citing Am. Psychiatric
Ass’n, Diagnostic and Statistical Manual of Mental Disorders (“DSM IV”) 32 (Text
Revision 4th ed. 2000)). “A GAF score of 41-50 indicates ‘[s]erious symptoms . . . [or]
serious impairment in social, occupational, or school functioning,’ such as inability to
keep a job.” Id. (quoting DSM IV at 34).
13

auditory or visual hallucinations. Recent & remote memory intact. Insight
and judgment poor.”
R. 24. The ALJ also considered other treatment records from Dr. Foote dated October
17, 2011; November 15, 2011; December 20, 2011; February 2, 2012; March 15, 2012;
April 19, 2012; May 17, 2012; June 14, 2012; July 12, 2012; August 9, 2012; September
4, 2012; October 2, 2012; November 1, 2012; November 29, 2012; and January 3, 2013.
See R. 25-27; see also R. 408-09, 412-13, 415-16, 466-96. These additional records
reflect examination findings similar to those summarized (as set forth above) by the ALJ,
with the exception that they also indicate some improvement in insight and judgment,
psychomotor agitation, and/or speech.
While Dr. Foote’s treatment notes contain findings of mental impairments and
limitations, they generally are not consistent with the proposition that Plaintiff’s
functional limitations regarding work-related activities are of the marked severity found
by Dr. Brand in his MCAs. One possible exception, however, is Dr. Foote’s assessments
of GAF scores of 40 and 45, which align to some extent with Dr. Brand’s MCAs. At her
initial psychiatric evaluation on November 11, 2010, Dr. Foote assessed Plaintiff with a
GAF score of 40. R. 354. Dr. Foote’s treatment notes from the next six appointments
show that she assessed Plaintiff with a GAF score of 45. R. 367 (Feb. 21, 2011), 369
(Mar. 14, 2011), 375 (Mar. 31, 2011), 377 (Apr. 21, 2011), 382 (May 17, 2011), 392
(June 27, 2011).

As with the mental examination findings, however, GAF scores

reflected in treatment records dated after June 27, 2011, indicate improvement. Though
the treatment record dated December 20, 2011, reflects a GAF score of 45, Dr. Foote’s

14

treatment records dated October 17, 2011; November 15, 2011; February 2, 2012; March
15, 2012; April 19, 2012; May 17, 2012; June 14, 2012; and July 12, 2012, all reflect
GAF scores of 50. R. 409, 413, 416, 486, 489, 491, 493, 495, 497. Dr. Foote’s treatment
records dated August 9, 2012; September 4, 2012; October 2, 2012; November 1, 2012;
November 29, 2012; and January 3, 2013, all reflect GAF scores of 55. R. 466, 469, 473,
477, 480, 483.
As an initial matter, the fact that the ALJ did not discuss the GAF scores was not
erroneous in and of itself. GAF scores have been found to be “not essential to the RFC’s
accuracy,” such that a failure to specifically address them is not error when the ALJ
adequately considers the assessing physician’s examination findings and other
physicians’ opinions that included the scores. See Richards v. Colvin, 640 F. App’x 786,
791 (10th Cir. 2016) (internal quotation marks omitted) (holding that failure to discuss
GAF scores did not demonstrate error in ALJ’s decision because such scores were not
“significantly probative evidence” when accompanied by no explanation and no
indication as to how they affected the claimant’s functional abilities); accord Kearns v.
Colvin, 633 F. App’x 678, 682 (10th Cir. 2015). Indeed, “[t]he most recent edition of the
DSM omits the GAF scale ‘for several reasons, including its conceptual lack of clarity
(i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable
psychometrics in routine practice.’”

Richards, 640 F. App’x at 791 (quoting Am.

Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 16 (5th ed.
2013)).

15

Here, even accepting Dr. Foote’s GAF scores of 40 and 45 as consistent with Dr.
Brand’s MCAs, those scores provide only limited support for the marked limitations Dr.
Brand assessed. Dr. Brand completed MCA 1 on January 12, 2012, which is after Dr.
Foote’s treatment notes began to reflect improvement and the GAF scores increased to
6

50.

Dr. Brand completed MCA 2 on December 18, 2012, which was after Dr. Foote
7

consistently assessed Plaintiff’s GAF scores at 55.

Upon review of Dr. Foote’s

treatment notes, including the GAF scores assessed therein, the Court concludes that the
ALJ’s determination that Dr. Brand’s MCA assessments “are inconsistent with the mental
status findings reported by Dr. Foote” is reasonable and supported by substantial
evidence. See R. 30.
(2) Consistency with Dr. Waller’s Findings and Opinions
Robert Waller, PhD, conducted a psychological evaluation of Plaintiff on
December 1, 2011. See R. 347-50. In declining to give significant weight to the opinions
in Dr. Brand’s MCAs, the ALJ determined that those opinions “are inconsistent with the
opinions and mental status findings reported by Dr. Waller.” R. 30. Emphasizing certain
portions of Dr. Waller’s exam notes, Plaintiff argues that Dr. Brand’s opinions actually
were supported by Dr. Waller’s findings. Pl.’s Br. at 19-20.

6

One exception is the December 20, 2011, GAF score of 45.

7

“A GAF score of 51-60 indicates ‘moderate symptoms,’ such as a flat affect, or
‘moderate difficulty in social or occupational functioning.’” Langley, 373 F.3d at 1122
n.3 (quoting DSM IV at 34).
16

The ALJ reviewed Dr. Waller’s mental status examination findings in detail. R.
26-27. Dr. Waller found that Plaintiff suffered from bipolar disorder and depression,
conclusions agreed with by the ALJ. R. 31. Insofar as limitations, Plaintiff points to Dr.
Waller’s observation of “memory gaps, loss of focus and loss of concentration.” Pl.’s Br.
at 19; R. 349. But in addition to those findings, Dr. Waller also observed that Plaintiff
has “cognitive/intellectual functioning . . . within the normal range,” “[n]o deficits . . . in
language/communication skills,” “no deficits in calculation skills/numerical reasoning,”
“normal level vocabulary and syntax/grammatical structuring,” and “[c]omprehension
8

[that is] appropriate for routine, verbally presented material.” R. 349. Further, the ALJ
summarized the following findings by Dr. Waller:
On mental status examination, the claimant reportedly experienced some
difficulty attending to and participating in examination procedures.
Furthermore, she was a poor historian. However, there reportedly were no
signs of diminished reality contact, and her orientation to person, place,
time, and situation was intact.
The claimant’s mentation was
slowed/halting, and her thought processes were marred by memory gaps
and loss of focus/concentration, although thought content was appropriate
to presented topics of discussion. The claimant’s affect was flat, and her
mood seemed depressed. However, she reportedly maintained good
emotional control at all times. She reported problems with mood swings,
although she denied current suicidal ideation. However, Dr. Waller noted
that no impulsivity or uncontrolled/unmanageable behaviors were
evidenced.
R. 26.

8

As with Dr. Foote’s notes, Plaintiff emphasizes various symptoms noted by Dr. Waller
as having been reported by Plaintiff. Pl.’s Br. at 19; R. 348. Again, those notes are
neither findings nor opinions and, as such, are of limited value in evaluating the ALJ’s
determination that Dr. Brand’s MCAs are inconsistent with Dr. Waller’s opinions and
mental status findings. See R. 30.
17

The ALJ’s discussion of Dr. Waller’s findings demonstrates that he considered
both those portions of Dr. Waller’s report that indicated mental limitations as well as
those portions that did not. And, while Dr. Waller’s findings support some level of
mental impairments in some categories listed in the MCAs, the findings do not support
marked limitations in all of the categories found by Dr. Brand. Upon review of Dr.
Waller’s report, the Court concludes that the ALJ’s determination that Dr. Brand’s MCA
assessments “are inconsistent with the opinions and mental status findings reported by
Dr. Waller” is reasonable and supported by substantial evidence. To find otherwise
would require the court reweigh the evidence and substitute its judgment for that of the
ALJ, which it is precluded from doing. See Bowman, 511 F.3d at 1272; accord Hackett,
395 F.3d at 1172; see also Lax v. Astrue, 498 F.3d 1080, 1084 (10th Cir. 2007)
(explaining that a court “may not displace the agency’s choice between two fairly
conflicting views”).
ii. The ALJ properly determined that Dr. Brand’s MCAs were entitled to
no significant weight
Having found that the ALJ properly determined that Dr. Brand’s MCAs were not
entitled to controlling weight, the question becomes whether the ALJ properly
determined that the MCAs were entitled to “no significant weight.” See R. 30; Watkins,
350 F.3d at 1300-01; Langley, 373 F.3d at 1119. The ALJ must consider a prescribed set
of regulatory factors:
(1) the length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or testing
performed; (3) the degree to which the physician’s opinion is supported by
18

relevant evidence; (4) consistency between the opinion and the record as a
whole; (5) whether or not the physician is a specialist in the area upon
which an opinion is rendered; and (6) other factors brought to the ALJ’s
attention which tend to support or contradict the opinion.
Watkins, 350 F.3d at 1301. The ALJ need not, however, explicitly discuss all these
factors in a given case, so long as the ALJ “provide[s] good reasons in [the] decision for
the weight he [or she] gave to the treating source’s opinions.” Oldham, 509 F.3d at 1258.
The ALJ considered these factors in weighing Dr. Brand’s MCAs and—consistent
with the third and fourth enumerated factors—assigned the MCA assessments little
weight due to an inadequacy of support from Dr. Brand’s own findings and an
inconsistency with other substantial medical evidence. See 20 C.F.R. § 404.1527(c)(3),
(4). The ALJ also properly considered that Dr. Brand was a psychologist and not a
psychiatrist. R. 30; 20 C.F.R. § 404.1527(c)(5). Plaintiff criticizes the ALJ’s statement
in this regard as dismissive of Dr. Brand’s training but the ALJ expressly stated that Dr.
Brand was a treating physician and an acceptable medical source. Pl.’s Br. at 17-18, 20;
R. 30. There is no indication that the ALJ placed undue weight on this distinction and,
moreover, the difference in specialization between Dr. Foote and Dr. Brand was only one
of multiple reasons given by the ALJ for not fully crediting Dr. Brand’s opinions. See
Bainbridge v. Colvin, 618 F. App’x 384, 390 (10th Cir. 2015) (“But even if this reason
was improper, the other reasons the ALJ gave were more than sufficient for rejecting [the
treating specialist’s] opinion.”).

19

d. Conclusion
The ALJ’s analysis of Dr. Brand’s opinions specified that he was giving those
opinions “no significant weight” and included consideration of the proper regulatory
factors as well as “citation to contrary, well-supported medical evidence.” See Oldham,
509 F.3d at 1258; R. 30. As such, the analysis satisfies the legal standards of the treating
physician rule, including “that the ALJ’s decision be sufficiently specific to make clear to
any subsequent reviewers the weight [he] gave to the treating source’s medical opinion
and the reasons for that weight.” Oldham, 509 F.3d at 1258 (internal quotation marks
omitted). Further, as detailed above, the ALJ’s findings underlying his decision to give
“no significant weight” to the opinions in Dr. Brand’s MCAs—namely that such opinions
were not well supported and were inconsistent with other medical evidence—were
9

reasonable and supported by substantial evidence. Accordingly, the ALJ did not err in
analyzing or assigning weight to Dr. Brand’s opinions.
2. Credibility
Plaintiff alleges that the ALJ failed to “make proper credibility findings.” Pl.’s Br.
at 25. The assessment of a claimant’s RFC generally requires the ALJ to make findings
regarding the credibility of testimony describing “the intensity, persistence, and
functionally limiting effects of . . . symptoms,” such as pain and other subjective
9

The ALJ also concluded that the limitations found by Dr. Brand were inconsistent with
those of two reviewing psychologists, both of whom had determined that Plaintiff does
not have a severe mental impairment. R. 30, 423-35, 453. Plaintiff does not challenge
the ALJ’s finding of inconsistency in this respect. Ultimately, the ALJ did not assign
significant weight to the opinions of the reviewing psychologists, at least insofar as their
determination of no severe mental impairments. R. 30-31.
20

complaints, that are associated with the claimant’s medically determinable impairments.
See SSR 96-7p, 1996 WL 347186, at *1 (July 2, 1996); Wilson v. Astrue, 602 F.3d 1136,
1144-45 (10th Cir. 2010). The ALJ is required to closely and affirmatively link his or her
credibility findings to substantial evidence in the record and to include “specific reasons”
for such findings. See Wilson, 602 F.3d at 1144; Qualls v. Apfel, 206 F.3d 1368, 1372
(10th Cir. 2000); SSR 96-7p, 1996 WL 473186, at *4. “Credibility determinations are
peculiarly the province of the finder of fact, and we will not upset such determinations
when supported by substantial evidence.” Wilson, 602 F.3d at 1144 (internal quotation
marks omitted). In making credibility determinations, the ALJ should consider objective
evidence as well as certain factors, including:
1. The individual’s daily activities;
2. The location, duration, frequency, and intensity of the individual’s pain
or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication the
individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, the individual receives or has received
for relief of pain or other symptoms;
6. Any measures other than treatment the individual uses or has used to
relieve pain or other symptoms (e.g., lying flat on his or her back, standing
for 15 to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning the individual’s functional limitations and
restrictions due to pain or other symptoms.
SSR 96-7p, 1996 WL 374186, at *3; accord 20 C.F.R. § 404.1529(c)(3); Hamlin v.
Barnhart, 365 F.3d 1208, 1220 (10th Cir. 2004).

21

Plaintiff’s challenge centers on the inconsistencies the ALJ found among:
Plaintiff’s testimony on April 4, 2013; the Third-Party Function Report completed by
Plaintiff’s husband on April 6, 2012; and Plaintiff’s Function Report of November 4,
2011. See Pl.’s Br. at 26-27; see also R. 45-67; R. 175-82, 193-200 (Exs. 5E, 9E).
Plaintiff does not argue that there were no inconsistencies, but rather that the ALJ “failed
to consider that Plaintiff’s disability reports were all written during different time periods
throughout the administrative process that spans more than 5 years from the alleged onset
date through date of decision.

Given the time span[,] it is clear that symptoms

themselves waxed and waned.” Pl.’s Br. at 26.
This argument is unavailing for several reasons.

First, the ALJ considered

inconsistencies that would not have “waxed and waned” over time. For instance, the ALJ
found “internal inconsistencies in the claimant’s responses on her Function Report[],”
which reflected answers given at a set point in time rather than over a long time span. R.
36; see R. 175-82. The ALJ also noted:
With respect to how well the claimant got along with authority figures, the
claimant’s husband responded, “It was bad for a while but with medication
change it is much better.” However, at the hearing the claimant appeared to
indicate that her medications had not really been changed. Additionally,
inconsistent with the claimant’s response, the claimant’s husband indicated
that the claimant had not been fired or laid off from a job because of
problems getting along with other people.
R. 35. Compare R. 199, with R. 51, 59, 181.
Second, the ALJ also noted inconsistencies with Plaintiff’s report to Dr. Waller on
December 1, 2011, which was nearly contemporaneous with Plaintiff’s Function Report,
stating that Dr. Waller’s report “appears to suggest greater independen[ce] in activities of
22

daily living [than] suggested by the claimant at the hearing on April 4, 2013[,] or even in
her Function-Report[] dated November 4, 2011.” R. 33-34. Compare Ex. 5E, with R.
346-51 (Ex. 5F), and R. 55-57, 59-62.
Third, even if some of the multiple examples of inconsistencies in Plaintiff’s
statements cited by the ALJ could be properly explained, it was appropriate for the ALJ
to consider the other inconsistencies that Plaintiff does not challenge. See R. 33-37; 20
C.F.R. § 404.1529(c)(4) (providing that “[i]n determining the extent to which your
symptoms, such as pain, affect your capacity to perform basic work activities” the SSA
“will consider whether there are any inconsistencies in the evidence and the extent to
which there are any conflicts between your statements and the rest of the evidence,
including your history, the signs and laboratory findings, and statements by your treating
or nontreating source or other persons about how your symptoms affect you” (emphasis
added)); Wilson, 602 F.3d at 1146 (finding the ALJ reasonably relied on inconsistencies
between claimant’s statements).
Accordingly, there is substantial evidence to support the ALJ’s conclusion that
Plaintiff’s inconsistent statements regarding her own abilities undermined her credibility.
Moreover, the ALJ’s credibility determination did not rely solely on inconsistencies in
Plaintiff’s statements. The ALJ also cited Plaintiff’s history of fraudulent crimes, stating
that “[w]hile the undersigned is not convinced that merely being convicted of a crime
detracts from credibility, crimes of fraud do reflect upon an individual’s propensity to tell
the truth, particularly when the fraud involves obtaining pain medication.” R. 33; see
also R. 291, 347, 354.

The ALJ reasonably concluded that these crimes of fraud
23

undermined Plaintiff’s credibility as a whole. See 20 C.F.R. § 404.1529(c)(3)(vii) (an
ALJ may consider “other factors”); Poppa v. Astrue, 569 F.3d 1167, 1171-72 (10th Cir.
2009) (finding the ALJ properly discussed and relied on evidence of drug-seeking
behavior when assessing the claimant’s credibility).

Further, as support for his

determination that Plaintiff had “exaggerated her allegations of pain and other symptoms
to the extent that she contends that she is unable to perform a somewhat limited range of
light work activity, [as] subject to the additional [limitations],” the ALJ also cited
inconsistencies between Plaintiff’s contentions and her self-described activities of daily
living. R. 36, 33-37. After a detailed review of Plaintiff’s reports of her activities, the
ALJ found that Plaintiff’s activities of daily living “do not appear to be significantly
inconsistent with the capacity to perform a somewhat limited range of light work activity
subject to the additional nonexertional limitations, including mental limitations
determined by this [ALJ].” R. 36, 37.
In this case, the ALJ properly evaluated Plaintiff’s credibility using the relevant
factors and “stated [the] specific evidence he relied on in determining that [the claimant’s]
allegations of disabling pain were not credible.” See Qualls, 206 F.3d at 1372. It is not
the Court’s role to weigh the evidence differently on substantial evidence review. See
Hackett, 395 F.3d at 1173.
3. Development of the Record
Plaintiff next alleges that the ALJ’s RFC determination is not supported by
substantial evidence because the ALJ failed to fully and fairly develop the record by
seeking additional information from Dr. Foote and Stephen Andrade, MD, a physician
24

who “treated [Plaintiff] for back and neck pain.” Pl.’s Br. at 21-25. The Court disagrees.
An ALJ’s duty to recontact Plaintiff’s physicians or otherwise seek additional medical
evidence is triggered if the medical evidence is insufficient to determine disability. 20
C.F.R. § 404.1520b(c); Giuliano v. Colvin, 577 F. App’x 859, 862 (10th Cir. 2014)
(“[T]he duty to recontact a doctor is triggered when the evidence is insufficient to make a
proper disability determination.”) (citing White v. Barnhart, 287 F.3d 903, 908 (10th Cir.
10

2001)).

Here, the ALJ had sufficient evidence to make a disability determination.

With respect to Plaintiff’s functional mental limitations, the ALJ had before him
22 progress notes from Dr. Foote, spanning from November 2010 to January 2013, each
of which contained detailed mental status examination findings. See R. 24-27, 30; see
also Exs. 7F, 15F. The ALJ also considered multiple treatment notes from Dr. Brand, as
well as a consultative examination from Dr. Waller and two opinions from state medical
consultants. See R. 24-27, 30-31; see also Exs. 5F, 7F; R. 423-36 (Ex. 9F); R. 453 (Ex.
12F). Plaintiff has not shown that the medical records from Dr. Foote or the medical
record as a whole was insufficient for determining disability. As such, the ALJ was not
required to request more information from Dr. Foote. See 20 C.F.R. § 404.1520b; see,
e.g., Beasley v. Colvin, 520 F. App’x 748, 752 (10th Cir. 2013) (holding that when the
treating physician had issued several items of evidence, the “ALJ had no duty to

10

Effective March 26, 2012, the regulations governing an ALJ’s “duty” to recontact a
medical source changed. 77 Fed. Reg. 10651-01 (Feb. 21, 2000). Under the current
regulations, if the evidence is insufficient to determine disability, an ALJ “may recontact
[a] treating physician, psychologist, or other medical source.” See 20 C.F.R. §
404.1520b(c) (emphasis added).
25

recontact [the treating source] . . . because the evidence was adequate to evaluate whether
[the claimant] was disabled”).
Nor has Plaintiff shown that “the record was under developed” based upon the
notation in Dr. Waller’s evaluation that additional testing “would be recommended to
confirm the current diagnostic impressions,” which were “based on [Plaintiff’s] selfreport.” See Pl.’s Br. at 22; R. 349-50. A diagnosis is not determinative of a disability;
instead, the focus of a disability determination is on the functional consequences of a
condition. See, e.g., Walters v. Colvin, 604 F. App’x 643, 648 (10th Cir. 2015); Fulton v.
Colvin, 631 F. App’x 498, 501 (10th Cir. 2015). Here, regardless of a fully-confirmed
diagnosis, Dr. Waller made findings regarding the functional limitations he observed
from his examination and, in turn, the ALJ evaluated the “opinions and mental status
findings reported by Dr. Waller” in determining the RFC. See R. 26-27, 30, 31. Plaintiff
has not shown that failure to obtain additional testing to confirm Dr. Waller’s diagnosis
rendered the record insufficient for determining disability. Specifically, Plaintiff has not
shown that Dr. Waller’s statement impelled the ALJ to recontact Dr. Foote for
confirmatory diagnosis or obtain additional information. See 20 C.F.R. § 404.1520b;
Jones v. Colvin, 647 F. App’x 878, 882 (10th Cir. 2016) (ALJ did not err in failing to
recontact medical source when claimant “fail[ed] to show that inconsistent or insufficient
evidence prevented the ALJ from determining whether he was disabled”).
With respect to Plaintiff’s physical impairments, Plaintiff also has not shown that
the record was inadequate such that the ALJ should have contacted Plaintiff’s treating
physicians for additional information. See Pl.’s Br. at 22-23; 20 C.F.R. § 404.1520b. As
26

Plaintiff acknowledges, the “record contains objective medical evidence and significant
clinical findings,” including “raw medical data from [Plaintiff’s physicians].” Pl.’s Br. at
22-23; see also R. 229-60, 261-98, 338-45 (Exs. 1F, 2F, 4F). Additionally, the record
contains reviews by two state medical consultants. See Pl.’s Br. at 24; see also R. 43744, 445-52, 454-61, 462 (Exs. 10F, 11F, 13F, 14F). The evidence as a whole was
adequate to evaluate Plaintiff’s physical impairments and the ALJ was not required to
recontact a treating physician or otherwise obtain additional information. See, e.g.,
Beasley, 520 F. App’x at 752 (10th Cir. 2013); Cowan v. Astrue, 522 F.3d 1182, 1187
(10th Cir. 2008) (holding that ALJ did not need to further develop the record where
sufficient evidence existed to make a disability determination).
Moreover, Plaintiff has not shown that the ALJ “substitut[ed] his judgment” for
that of Plaintiff’s physicians. Pl.’s Br. at 21, 23. This is not a situation where the ALJ
improperly rejected a medical opinion or medical judgment and elevated his own medical
opinion over that of a physician. Cf. Winfrey v. Chater, 92 F.3d 1017, 1022-23 (10th Cir.
1996) (finding ALJ substituted his judgment for that of treating psychologist when ALJ
rejected psychologist’s diagnoses due to ALJ’s opinion that psychologist had improperly
used diagnostic tests); see also McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir.
2002); Kemp v. Bowen, 816 F.2d 1469, 1476 (10th Cir. 1987). Rather, the ALJ evaluated
the medical evidence of record, properly assessed weight for the medical opinions, and
determined the RFC.

“The ALJ, not a physician, is charged with determining a

claimant’s RFC from the medical record.” Chapo v. Astrue, 682 F.3d 1285, 1288 (10th
Cir. 2012) (alteration and internal quotation marks omitted).
27

4. Whether the ALJ’s RFC Determination Is Supported by Substantial Evidence
Relying on her contentions that greater weight should have been given to Dr.
Brand’s opinions and Plaintiff’s testimony, and further contending that “the ALJ’s
decision does not identify a medical opinion that supports his [RFC] finding,” Plaintiff
argues that the ALJ’s RFC determination is not supported by substantial evidence. See,
e.g., Pl.’s Br. at 21. The Court disagrees.
The Court “must affirm an ALJ’s decision if substantial evidence—’more than a
scintilla, but less than a preponderance’—exists to support it.” Tarpley v. Colvin, 601 F.
App’x 641, 643 (10th Cir. 2015) (quoting Lax, 489 F.3d at 1084). Here, the Court has
found that the ALJ’s views of Dr. Brand’s opinions and Plaintiff’s testimony are
supported by substantial evidence.

Regarding the lack of a substantially identical

medical opinion, no such opinion is required. The Tenth Circuit recently reiterated its
rejection of the proposition “that an ALJ may not make an RFC finding that differs from
a physician’s opinion unless the ALJ relies on a conflicting medical opinion.” Berumen
v. Colvin, 640 F. App’x 763, 765 (10th Cir. 2016). That court explained:
In Chapo[, 682 F.3d at 1288], we rejected the argument “that the
components of an RFC assessment lack substantial evidentiary support
unless they line up with an expert medical opinion.” As we noted in
Chapo, “[t]here is no requirement in the regulations for a direct
correspondence between an RFC finding and a specific medical opinion on
the functional capacity in question.” Id. Moreover, . . . it is ultimately the
ALJ’s responsibility, not a physician’s, to assess a claimant’s RFC from the
medical record.
Id. at 765-66 (second alteration in original).

28

Here, two reviewing psychologists determined that Plaintiff had no severe mental
impairments. R. 423-35, 453. The ALJ disagreed, finding that the medical record
demonstrated the existence of severe mental impairments and placing restrictions in the
RFC to account for limitations caused by those impairments. R. 30, 20. Consistently
with the discussion above, Plaintiff has not shown that these determinations by the ALJ
are unsupported by substantial evidence in the record.
B. Step-Five Determination
Plaintiff also argues that the ALJ’s step-five determination that Plaintiff could
perform jobs that exist in substantial numbers in the regional or national economy is not
supported by substantial evidence. Pl.’s Br. at 28-32. Plaintiff contends that the ALJ’s
reliance on the VE’s testimony was improper because the ALJ did not include all of
Plaintiff’s limitations in the hypothetical posed to the VE. Pl.’s Br. at 29-31.
The ALJ, however, posed a hypothetical question that reflected all the limitations
found credible and ultimately included in his RFC assessment. Compare R. 63, with R.
11

32-33.

The VE testified that such a hypothetical individual could perform the light

11

Plaintiff argues that the ALJ erred by not incorporating in the hypothetical the finding
set forth in the written decision that Plaintiff has moderate difficulty in maintaining
concentration, persistence, and pace. Pl.’s Br. at 30; see R. 31, 32. Such finding is a
“paragraph B” finding that the ALJ made at steps two and three. See R. 31, 32; SSR 968p, 1996 WL 374184, at *4 (July 2, 1996). As set forth by the SSA, “[t]he adjudicator
must remember that the limitations identified in the ‘paragraph B’ . . . criteria are not an
RFC assessment but are used to rate the severity of mental impairment(s) at steps 2 and 3
of the sequential evaluation process.” SSR 96-8p, 1996 WL 374184, at *4. The Tenth
Circuit has also rejected Plaintiff’s argument that the ALJ must incorporate “paragraph
B” criteria findings of moderate limitations into the RFC finding. See Vigil v. Colvin,
805 F.3d 1199, 1203 (10th Cir. 2015) (“The ALJ’s finding of a moderate limitation in
concentration, persistence, or pace at step three does not necessarily translate to a work29

unskilled jobs of merchandise marker, label coder, and routing clerk, and the sedentary
unskilled jobs of addressor, tube operator, and document processor. R. 64. Because the
hypothetical posed to the VE comprehensively described Plaintiff’s limitations as
reflected in the RFC determination (which is supported by substantial evidence as
outlined above), the ALJ did not err in relying on the VE’s testimony to find that Plaintiff
could perform other work that existed in the national economy. See Qualls, 206 F.3d at
1373 (“The ALJ propounded a hypothetical question to the VE that included all the
limitations the ALJ ultimately included in his RFC assessment. Therefore, the VE’s
answer to that question provided a proper basis for the ALJ’s disability decision.”).
Plaintiff additionally argues that the VE’s testimony conflicts with the DOT
because the jobs identified by the VE and relied upon by the ALJ at step five require

related functional limitation for the purposes of the RFC assessment.”).
Plaintiff also asserts that she “meets or equals listing 12.04,” although she does not
separately challenge the ALJ’s step-three determination on appeal. Pl.’s Br. at 13 n.9.
To meet or equal listing 12.04, Plaintiff must have marked restrictions in at least two
“paragraph B” criteria. See 20 C.F.R. pt. 404, subpart P app. 1 § 12.04(B). The ALJ
found no marked limitations in the “paragraph B” criteria. See R. 32. Though Plaintiff
cites to Dr. Brand’s MCA 2 as evidence of such limitations, MCAs are mental capacity
assessments that are relevant to the determinations made at steps four and five, not steps
two and three. See SSR 96-8p, 1996 WL 374184, at *4 (“The adjudicator must
remember that the limitations identified in the “paragraph B” and “paragraph C” criteria
are not an RFC assessment but are used to rate the severity of mental impairment(s) at
steps 2 and 3 of the sequential evaluation process. The mental RFC assessment used at
steps 4 and 5 of the sequential evaluation process requires a more detailed assessment by
itemizing various functions contained in the broad categories found in paragraphs B and
C of the adult mental disorders listings ... and summarized on the [PRT].”); see generally
Lull v. Colvin, 535 F. App’x 683, 685-86 (10th Cir. 2013) (explaining the differences
between “paragraph B” criteria used to determine mental impairments and mental
capacity assessments used to determine RFC). In any event, substantial evidence—
including as discussed above—supported the limited weight given to Dr. Brand’s MCAs.
30

climbing, which the ALJ determined Plaintiff could not do. Pl.’s Br. at 31-32; see also R.
32-33. Plaintiff contends that, because the ALJ did not resolve the conflict, the VE’s
testimony does not constitute substantial evidence for the ALJ’s step-five determination.
Pl.’s Br. at 31-32. However, a conflict between the VE’s testimony and the DOT would
only be prejudicial if all of the occupations identified by the VE, and relied upon by the
ALJ at step five as examples of jobs that Plaintiff can perform, would be precluded by
Plaintiff’s limitations. See Chrismon v. Colvin, 531 F. App’x 893, 899-900 (10th Cir.
2013) (holding that ALJ’s failure to include all limitations from RFC in hypothetical
question to VE was harmless when two of the four occupations identified by the VE were
consistent with RFC). See generally Keyes-Zachary v. Astrue, 695 F.3d 1156, 1162-63
(10th Cir. 2012) (indicating that harmless-error analysis may be appropriate where ALJ
did not properly consider evidence but “no reasonable administrative factfinder,
following the correct analysis, could have resolved the factual matter in any other way”
(internal quotation marks omitted)).
The VE identified a total of six occupations that a hypothetical person subject to
all of the limitations listed in Plaintiff’s RFC would be able to perform. See R. 38.
Examination of the Dictionary of Occupational Titles (“DOT”) entries for these positions
confirms that one occupation, label coder, has a “Climbing” requirement of
“Occasionally.” DOT 920.587-014 (label coder), 1991 WL 687915 (4th rev. ed. 1991).
Because Plaintiff’s RFC includes the restriction that she “never climb ladders, robes or
scaffolds,” Plaintiff is correct that this occupation is precluded by the RFC determination.

31

The remaining five occupations testified to by the VE and relied upon by the ALJ,
however, do not conflict with a limitation on climbing. For the jobs of merchandise
marker, routing clerk, addresser, tube operator, and document processer, the “Climbing”
requirement is “Not Present”—i.e., the “[a]ctivity or condition does not exist.” See id.
209.587-034 (merchandise marker), 1991 WL 671802; id. 222.587-038 (routing clerk),
1991 WL 672123; id. 209.587-010 (addresser), 1991 WL 671797; id. 239.687-014 (tube
operator), 1991 WL 672235; id. 249.587-018 (document processor), 1991 WL 672349.
The VE testified that these five occupations together offer 6100 jobs existing in
Oklahoma and 573,500 jobs existing in the national economy. See R. 64. Because these
occupations support the ALJ’s step-five conclusion, reversal is not warranted even with
erroneous reliance upon the occupation of label coder.

12

See, e.g., Chrismon, 531 F.

App’x at 899-900; Evans v. Colvin, 640 F. App’x 731, 736 (10th Cir. 2016) (recognizing
that the Tenth Circuit has “held an ALJ’s erroneous inclusion of some jobs to be harmless
error where there remained a significant number of other jobs in the national economy”);
King v. Colvin, No. CIV-15-50-D, 2016 WL 1171491, at *4 (W.D. Okla. Mar. 8, 2016)
(R. & R.) (finding no prejudicial error when, after disregarding one occupation cited by
ALJ, the remaining occupations offered a total of 2400 combined jobs in Oklahoma and

12

Plaintiff also contends that “work as a merchandise marker . . . requires occasional
communication with the public.” Pl.’s Br. at 32. A review of the DOT listing for
merchandise marker, however, indicates that the requirement for interacting with people
is coded as an 8, which is the lowest level possible, and specified as “Not Significant,”
while the activity of Talking is “Not Present.” See DOT 209.587-034 (merchandise
marker), 1991 WL 671802; id. PARTS OF THE OCCUPATIONAL DEFINITION, 1991
WL 645965. The Court finds no merit in Plaintiff’s argument.
32

266,000 combined jobs in the national economy), adopted, 2016 WL 1179212 (W.D.
Okla. Mar. 24, 2016); see also Raymond v. Astrue, 621 F.3d 1269, 1274 (10th Cir. 2009)
(upholding ALJ’s reliance on VE testimony where, even assuming two of the three jobs
relied upon by the ALJ were erroneous, substantial evidence showed claimant could do
the third job, which existed in significant numbers in the national economy).
CONCLUSION
Based on the foregoing analysis, the decision of the Commissioner is AFFIRMED.
Judgment will issue accordingly.
IT IS SO ORDERED this 22nd day of September, 2016.

33

DR. BRAND’S MENTAL CAPACITY ASSESSMENTS
DEGREE OF
LIMITATION
MCA 1
MCA 2
UNDERSTANDING & MEMORY
The ability to remember locations and work-like procedures
Moderate Moderate
The ability to understand and remember very short and simple
Moderate Moderate
instructions
The ability to understand and remember detailed instructions
Marked
Moderate
SUSTAINED CONCENTRATION & PERSISTENCE
The ability to carry out very short and simple instructions
Slight
Moderate
The ability to carry out detailed instructions
Moderate Marked
The ability to maintain attention and concentration for extended
Moderate Marked
periods
The ability to perform activities within a schedule, maintain
Moderate Marked
regular attendance, and be punctual within customary tolerances
The ability to sustain an ordinary routine without special
Slight
Moderate
supervision
The ability to work in coordination with or proximity to others
Marked
Moderate
without being distracted by them
The ability to make simple work-related decisions
Moderate Slight
The ability to complete a normal workday without interruptions
Marked
Marked
from psychologically based symptoms
The ability to complete a normal workweek without interruptions
Moderate Marked
from psychologically based symptoms
The ability to perform at a consistent pace with a standard number
Moderate Moderate
and length of rest periods
Number of monthly absences
2
3
SOCIAL INTERACTION
The ability to interact appropriately with the general public
Slight
Slight
The ability to ask simple questions or request assistance
Slight
Slight
The ability to accept instructions and respond appropriately to
Moderate Marked
criticism from supervisors
The ability to get along with coworkers or peers without
Moderate Moderate
distracting them or exhibiting behavioral extremes
The ability to maintain socially appropriate behavior and to adhere
Marked
Slight
to basic standards of neatness and cleanliness
ADAPTATION
The ability to respond appropriately to changes in the work setting Marked
Marked
The ability to be aware of normal hazards and take appropriate
Moderate Slight
precautions

34

The ability to travel in unfamiliar places or use public
transportation
The ability to set realistic goals or make plans independently of
others

35

Marked

Marked

Moderate Marked